Family Law

Walsh-Stender v. Walsh, __ S.W.3d __ (Ky. App. 2009)

   The parties divorced in Tennessee and the decree included a permanent parenting plan regarding the custody of the parties? minor son.  The Tennessee court modified the parenting plan in 2004, and shortly thereafter father and son moved to Kentucky.  Even though the son lived in Kentucky, he still visited his mother in Tennessee.  In 2008, father filed a petition to modify custody in Kentucky.  Father sought sole custody with mother having limited visitation.  After a hearing, the Kentucky court granted father?s motion.  Mother, who represented herself, filed a CR 60.02 motion months later.  The Kentucky court denied the motion and mother appealed. 

The COA never reached the merits of mother?s CR 60.02 motion.  Instead, it vacated the trial court?s denial of her CR 60.02 motion, the custody modification order, and any and all collateral orders, including the award of costs and attorney fees to father, because the Kentucky court lacked subject matter jurisdiction under the UCCJEA.  ?Under the UCCJEA, the state having original jurisdiction over a custody matter retains exclusive, continuing jurisdiction over all custody matters even when the child has acquired a new home state as long as the child and at least one parent maintains substantial connections with the state.?  Since the mother still lived in Tennessee and the son regularly visited her, the substantial connection requirement was met.  Further, there was nothing in the record that showed that Tennessee declined to exercise its jurisdiction.  The lack of jurisdiction by the Kentucky court cannot be waived.  Even though the mother did not raise the issue of jurisdiction on appeal, appellate courts are required to address jurisdictional issues sua sponte if needed.  

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates